NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D388b

28 Fla. L. Weekly D1059a

Torts — Automobile accident — Action by plaintiff individually and on behalf of his minor son arising out of accident in which vehicle owned and occupied by plaintiff’s former wife, who was at time two months pregnant with son, was struck, causing serious injury to former wife and unborn child — Insurance — Plaintiff was not entitled to uninsured motorist coverage under insurance policy that covered a vehicle which was owned by plaintiff but sold two weeks prior to accident — Plaintiff did not maintain an insurable interest for 30 days after sale of his car because he did not meet conditions necessary to trigger policy’s 30-day grace period, which were that he become owner of another car within policy period and request coverage, in writing, within 30 days of date of ownership — Because insurable interest expired when plaintiff sold car, and plaintiff did not create new insurable interest by acquiring new vehicle and requesting coverage within 30 days, plaintiff had no insurable interest in policy at time of accident, and trial court should have granted insurer’s motion for summary judgment — Damages — Loss of parental consortium — Unborn, non-viable fetus can be considered an “unmarried dependent” for purposes of statute permitting recovery of damages for loss of parent’s services, comfort, companionship, and society, although court notes that fetus does not have this claim until after it is born alive — Damages for loss of filial consortium are limited to period of child’s minority by common law, and award of these damages must be remitted to reflect this — Damages recoverable by child for loss of parental consortium are not limited to period of child’s minority

MICHAEL E. LARUSSO, FELIPE S. JONIOR, MARK SAMAREL, and SOUTHERN GROUP INDEMNITY, INC., a Florida corporation, Appellants, v. BRIAN GARNER, individually, and as natural parent and guardian of BRADEN DANIEL GARNER, a minor, ANA MARTINEZ GARNER, HARDRIVES OF DELRAY, INC., METRIC ENGINEERING COMPANY, FLORIDA DEPARTMENT OF TRANSPORTATION, STATEWIDE ADJUSTERS, INC., a Florida corporation, and PARKWAY INSURANCE AGENCY, INC., a Florida corporation, Appellees. 4th District. Case Nos. 4D01-912, 4D01-1082 & 4D01-1115. Opinion filed April 30, 2003. Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward H. Fine, Judge; L.T. Case Nos. CL 95-5464 AI & CL 96-8765 AI. Counsel: Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellants Michael E. Larusso and Felipe S. Jonior. Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellant Mark Samarel. Doreen E. Lasch of the Law Offices of Roland Gomez, Miami Lakes, and David B. Pakula of David B. Pakula, P.A., Fort Lauderdale, for appellant Southern Group Indemnity, Inc. Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Gregg A. Schlesinger and Todd R. McPharlin of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees Brian Garner and Braden Daniel Garner.

(PER CURIAM) This is an appeal from the final judgment granting Brian Garner and Braden Garner a multi-million dollar verdict arising from an October 27, 1994 traffic accident involving Ana Garner, Brian’s former wife and Braden’s mother. Ana was two months pregnant with Braden and had been married to Brian for a little less than a month when this accident occurred at an intersection undergoing construction. She was sitting in a car that she owned on Glades Road at the State Road 441 intersection stoplight. Felipe Jonior, driving a car owned by Michael Larusso, made a left-hand turn from 441 onto Glades, colliding with Mark Samarel in the process. Samarel was proceeding straight through the intersection. Samarel’s car spun out of control and into Ana’s car on the driver’s side. Ana sustained severe brain damage and bodily injury. She was airlifted to a hospital, where she remained in a coma for some time. Despite her injuries, she carried Braden to term.

Ana was deemed incompetent for a period after the accident. Ana’s mother, as her guardian, filed a personal injury lawsuit for Ana’s injuries against the Department of Transportation, the construction companies, the drivers, and Larusso. Brian filed a lawsuit asserting his own claims and on behalf of his son.¹ Ana’s lawsuit was consolidated for trial with Brian and Braden’s lawsuits. After regaining her competency, Ana settled during trial; consequently, the jury did not have her claims before it and her claims will not be discussed in this opinion.

Only Brian and Braden’s claims are pertinent to this appeal. Brian, as guardian of Braden, filed Braden’s loss of consortium claim for his mother and Braden’s personal injury claims for organic brain injury received in utero as a result of Ana’s accident and treatment. Brian filed for loss of consortium of his son and wife due to their permanent injuries. Brian and Braden’s claims were filed against all of the defendants involved in Ana’s case plus Southern Group Indemnity (“Southern”). Brian’s own insurance company, for uninsured motorist benefits.

When Brian and Braden sued Southern, Southern filed for summary judgment. Southern argued that its coverage ended when Brian sold his car nearly two weeks before Ana’s accident.

Brian responded that he maintained an insurable interest for 30 days after the sale of his car. For this contention, he relied on a policy provision defining the covered auto as any private passenger auto on the date he became the owner if he acquired the car within the policy period and requested coverage, in writing, within 30 days of the date of ownership. Brian contended that through this provision his insurable interest survived for 30 days after the sale of the car; therefore, he had an insurable interest at the time of Ana’s accident.

We reject Brian’s argument because he did not meet the conditions in the policy to trigger the 30-day grace period. Brian did not become the owner of any new car during the policy period and he did not request coverage within 30 days, in writing or otherwise, of any such car. The record shows that Brian bought a six-month policy with Southern for his vehicle. Brian sold this vehicle on October 12, 1994, just two weeks before Ana’s October 27 accident. He never added Ana’s car nor any other car to the policy. After Ana’s accident, Brian notified Southern by letter that he sold his car on October 12, 1994.

Under these facts, Brian did not meet the two qualifying conditions for replacing his covered auto and therefore did not activate the 30-day grace period for adding a new car to the policy. In sum, he had nothing to insure under the Southern policy at the time of Ana’s accident.

Further, Brian did not have any insurable interest under Florida law at the time of Ana’s accident. Section 627.405, Florida Statutes (1994) provided, “No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of loss.” Insurable interest is further defined to mean “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” This law includes claims for uninsured motorist benefits. Uninsured motorist benefits are dependent on other coverage provided in car policies and are, therefore, indirectly dependent on the existence of an insurable interest. See Johnson v. Aetna Life & Cas. Co., 472 So. 2d 859, 861 (Fla. 3d DCA 1985).

We hold that Brian’s insurable interest in the insured property expired when he sold the car under Johnson and section 627.405. Moreover, without acquiring a new vehicle and requesting coverage within 30 days, he did not create a new insurable interest under the policy. Therefore, Brian had no insurable interest in the policy at the time of Ana’s accident, and the trial court should have granted Southern’s motion for summary judgment. Because we conclude the claims against Southern never should have been sent to the jury, we do not address any jury findings with relation to Southern.

The jury was charged with attributing fault for the accident among the remaining defendants. The jury found Jonior 30 percent at fault for the accident and Samarel 60 percent at fault.² The jury awarded Braden one million dollars for future lost earning capacity and future medical treatment for injuries sustained in utero as a result of the accident. Braden also received three million dollars for the loss of his mother’s consortium. The jury found that Braden sustained permanent injury as a result of the accident and awarded him two million dollars. The jury awarded Brian $300,000 for the loss of his wife’s consortium and $500,000 for the loss of his son’s consortium. Jonior, Samarel (the drivers involved in the accident), and Larusso (owner of the car Jonior was driving) appeal this verdict.

The defendants contend that Braden, only a two-month-old non-viable fetus at the time of his mother’s injury, had no legal claim for loss of parental consortium damages. The parties have argued, and we decline to address, whether a non-viable fetus can have a relationship with its mother such that it can sustain a legal loss of consortium. We do not address that issue simply because parental consortium is statutory rather than common law; therefore, we look to the language of the statute only.

In Florida, children do not have a common law loss of consortium claim for their parents. See Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985). Florida established a child’s claim for loss of parental consortium through statute.

A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society.

§ 768.0415, Fla. Stat. (1992).

Well established principles of statutory analysis guide us in our decision. “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998). “One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined by the statute or by the clear intent of the legislature. If necessary, the plain and ordinary meaning of a word can be ascertained by reference to a dictionary.” Green v. State, 604 So. 2d 471, 473 (Fla. 1992).

The limited question which we must resolve is whether an unborn, non-viable fetus can be an “unmarried dependent” for purposes of this statute. Marital status is clearly beside the point, so the remaining term is “dependent.”

Webster’s New Collegiate Dictionary defines the term dependent, when used as a noun, as “one that is dependent, especially a person who relies on another for support.” Webster’s New Collegiate Dictionary 302 (1980). Dependent as an adjective is defined as “relying on another for support.” Webster does not make the status of the individual a determining factor; the core of the definition is “reliance on another for support.”

By that definition, a fetus is very nearly the physical embodiment of a dependent. For the time it is in the womb, especially during non-viability, it is completely physically dependent on the mother’s body for its survival.

The legislature did not limit “unmarried dependents” to persons already born at the time of injury, and it is not our job to write words into the statute. We note, however, that a fetus does not have this claim until after it is born alive, according to Florida’s long-standing “born alive” rule. See Shone v. Bellmore, 78 So. 605 (Fla. 1918).

We also point out that this conclusion is not a novel addition to Florida tort law. Florida allows a child born alive to recover damages for its own injuries occurring when it was a fetus regardless of viability. See Day v. Nationwide Mut. Ins. Co., 328 So. 2d 560 (Fla. 2d DCA 1976). A child born alive may also receive compensation for a parent’s injury or death under the Workmen’s Compensation statute. See C.F. Wheeler Co. v. Pullins, 11 So. 2d 303 (Fla. 1942). A child born alive may also recover damages under the Wrongful Death Act for a parent killed shortly before the child’s birth. See Ellis v. Humana of Fla., 569 So. 2d 827 (Fla. 5th DCA 1990).

The defendants also appeal the amounts of Brian’s filial consortium award and Braden’s statutory consortium award. Filial consortium damages are limited to the period of the child’s minority by common law. See Broward Co. Sch. Bd. v. Cruz, 761 So. 2d 388, 395-96 (Fla. 4th DCA 2000), aff’d, 800 So. 2d 213 (Fla. 2001). The plaintiffs concede this point. Therefore, we reverse Brian’s award for loss of filial consortium for remittitur to Braden’s years of minority.

Braden’s claim, however, is not common law, so Cruz is inapplicable. Section 768.0415 speaks only to who may bring the claim, not to the extent of damages. The statute specifically includes “damages for permanent loss of services, comfort, companionship, and society.” (emphasis added). Because the statute does not limit damages, we decline to limit the damages to the age of minority. This would be a task for the legislature rather than for this Court.

In conclusion, we reverse and remand for entry of summary final judgment in favor of Southern, reverse and remand Brian’s filial consortium award for remittitur, and affirm all other aspects without further comment.

REVERSED IN PART, AFFIRMED IN PART. (GUNTHER, WARNER, JJ., and HARNAGE, HENRY H., Associate Judge, concur.)

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¹Ana and Brian divorced during the litigation.

²The remaining 10 percent fault was apportioned between two companies involved in the construction at the intersection. They are not part of this appeal; therefore, we do not discuss their liability.